Privately Owned Public Space? “Occupy Wall Street” Real Estate Questions

Rainy Morning at Liberty Square: Occupy Wall Street HQ

For almost two weeks hundreds of protesters calling themselves “Occupy Wall Street” have been camped out in an open air plaza located between Wall Street and the World Trade Center site in lower Manhattan. The protesters have set up information tables, a library, a General Assembly area, a kitchen, a media center and a space for protest sign making. Known as Liberty Square by the protestors and named Zuccotti Park by Brookfield Office Properties after its chairman John C. Zuccotti, the plaza is a “POPS”: a privately owned public space.

What’s a POPS and what does this mean for the protesters?

In the case of Liberty Square, Brookfield Office Properties owns the land and maintains the park, but the plaza is considered open to the public. The go-to reference here is the book “Privately Owned Public Space: The New York City Experience”, by Harvard professor Jerold S. Kayden, which was published by the New York City Department of City Planning and the Municipal Art Society of New York in 2000. The Department of City Planning website also has some helpful background information. There are currently over 500 POPS in the city and they all are outgrowths of the 1961 Zoning Resolution (and various later amendments). The goal of that resolution was to allow real estate developers to build bigger than normally allowed by city zoning regulations (including, according to the DCP, “relief from certain height and setback restrictions”) and in exchange the developers have been contractually required to provide new publically accessible spaces.

Practically speaking, in 1968 Brookfield Office Properties essentially “bought” the right to build an additional 500,000 square feet of office space at its 54 story building One Liberty Plaza, just to the north of the park, in exchange for agreeing to build and maintain a public space. For some more on this deal see this recent New York Times article.

So what laws shape the use of Liberty Square/Zuccotti Park?

According to Professor Kayden’s book, when a POPS deal goes down, the developers agree to provide legally binding rights of access to members of the public in exchange for the value they get from the relaxation of specific zoning regulations. Can Brookfield Office Properties tell the protesters to get out? It all depends on what is in the various legal documents they signed with the city.

Calls are in to the NYC Department of City Planning and also to Professor Kayden and we hope to have more detailed information soon.

Special thanks to Geoffrey Croft of NYC Park Advocates for the tip on Professor Kayden's book.